This revision petition has been filed against the order passed by the District Criminal Court, Pallandri, on January 23, 1996, whereby the accused-respondents were allowed bail in the offences under sections 5 and 15, Islamic Penal Laws Act read with sections 307, 149, 147, 148, A.P.C. And section 13/20/65, Arms Act.
2. The facts giving rise to the present revision petition are that a case under section 307/34, A.P.C.
And section 5/15, Islamic Penal Laws Act, was registered at Police Station Pallandri on the report of complainant Shahpa Akhtar, on July 10, 1995 at 5-30 p.m. Against the respondents and other accused. It was stated in the F.I.R. That the complainant was employed in Peshawar C.M.H. And had come on two months' leave. It was also disclosed that there was some family dispute between his cousin Mst. Shesham Jan and her husband, Muhammad Hayat Khan, accused. To solve the said dispute, Hayat Khan summoned Muhammad Hussain, Gul Hussain, Pervaiz, Ashfaq, Ishaque Tariq Khan, Haji Lal and complainant, on July 10, 1995 at his residence who reached there. During the conversation at about 3 p.m. Said Hayat Khan accused passed remarks against his wife, Mst.
Shesham Jan, on which hot words were exchanged between Gul Hussain and Hayat Khan. After the altercation, Hayat Khan went towards the house of Muhammad Akram where Muhammad Akram son of Jewan Khan, Mazhar son of Munir Ahmed Khan, Arshad son of Ghiragh Ahmed Khan had already assembled in his house and after a while, he and Hayat Khan armed with .12 bore guns, Mazhar with a 'Pail' and Arshad with a ' Sota', attacked Muhammad Akram, with the intention to kill, fired at Gul Hussain and Ashfaq Khan which hit the left shoulder and chest of Gul Hussain, while Ashfaq Khan received injuries at his nose, neck, jaw and chest. On the alarm raised by the complainant and others, the ladies of the locality gathered there. The complainant with the help of Muhammad Hussain brought out the injured Gul Hussain when accused Hayat Khan, with the intention to kill, fired at Muhammad Hussain from a close range which hit him at his right leg.
Meanwhile, Mazhar, Arshad and Mst. Kalo Bi, accused started beating the complainant and Muhammad Hussain with 'Pail' and ' Sota' . The complainant helped Muhammad Hussain to take him out when Muhammad Akram accused, with his .12-bore gun, fired at him from a close range which hit his back and right hand of the complainant. Meanwhile, Hayat Khan fired his third shot which hit Muhammad Hussain's right leg who succumbed to the injuries at the spot. The accused with a common object, after having armed with guns, 'Pail' and 'Sota', killed Muhammad Hussain and injured Gul Hussain, Ashfaq Khan and complainant. The occurrence was witnessed by the said persons and tile ladies present there.
3. After investigation, the challan was forwarded to the District Criminal Court, Pallandri, in the offences under sections 307, 147, 148 and 149, A. P C read with section 5/15, Islamic Penal Law Act and section 13/20/65, Arms Act.
The trial Court took the cognizance of the offences where the trial of the case is in progress. The accused-respondents applied for their bail which after hearing the parties, was allowed vide the impugned order.
4. Kh. Atta Ullah, the learned Additional Advocate-General and Mr. Ghulam Mustafa Mughal, the learned counsel representing the complainant, maintained that a strong prima facie case exists against the accused-respondents who with common object and intention, while armed with 'Pail' and ' Sota' , inflicted injuries on Muhammad Hussain deceased and prosecution witnesses. The accused-respondents committed a heinous offence for which they are liable to punishment of '
Qisas' or death sentence. The prohibitory clause of section 497, Cr.P.C. Is attracted in the matter, as such the discretion exercised by the trial Court in favour of accused-respondents, is against the basic principles governing the bail matters. The learned counsel for the complainant referred to 1979 SCMR 92 and 1981 SCMR 849. On the other hand, Sardar Rafique Mahmood Khan, the learned counsel for the accused-respondents, defending the order of the Trial Court, raised the following points.--
(i) That there is no prima facie case established against the accused-- respondents by the prosecution;
(ii) that the allegations levelled against the accused-respondents require further probe and inquiry, as such the case is covered by sub--section (2) of section 497, Cr.P.C. It was explained that the medical evidence contradicts the version put forth by the complainant and prosecution witnesses. Even otherwise, the attribution of injuries on the person of the deceased and prosecution witnesses, to the accused respondents, requires further inquiry in view of the nature of the injuries;
(iii) that the Trial Court, after due consideration of the facts involved in the case, proceeded to exercise its discretion vested in it by law which does not require interference by this Court as nothing has been pointed out, violating any law or principle established by the superior Courts in the bail matters.
5. I have heard the learned counsel for the parties and also gone through the record. According to the prosecution version, respondent No. 1, Mazhar Hussain is attributed to have caused injuries on the person of Muhammad Hussain deceased and Shahpal Akhtar, complainant (injured prosecution witness) with a 'Pail', while the other accused-respondent, Muhammad Arshad, is alleged to have caused injuries wi1th a 'Sota', to the deceased and other prosecution witnesses. A perusal of the medico-legal report shows that Muhammad Hussain deceased received 5 injuries on his person. Out of those, the first four are of fire-arm while the fifth one is multiple bruises marks of different sizes present on the face. The post-mortem report, though does not disclose any injury caused by blunt weapon, yet the above-referred injury can be stated to be caused as such.
Shahpal Akhtar, complainant, the prosecution witness received 4 injuries which, according to the medico-legal report, are stated to be the fire-arms injuries. Gul Hussain, the other prosecution witness also received 5 injuries which are shown to have been caused with fire-arms. According to the complainant's version, the accused-respondents are attributed to have caused the injuries with 'Pail' and ' Sota' to the deceased and prosecution witnesses but the medico-legal report contradicts the version pat forth by the complainant and the other witnesses. The multiple bruises shown on the person of Muhammad Hussain deceased also do not appear to have been caused with the weapons attributed to the accused-respondents.
6. The Court while considering a bail application, should take into consideration the allegations made in the F.I.R., statements of the eye-witnesses and other incriminating material placed by the prosecution, including any plea raised by the accused. To form an opinion, if reasonable grounds appear for believing that the accused was guilty of an offence punishable with death or imprisonment for life, the accused shall not be released on bail subject to proviso of section 497, Cr.P.C. But if it appears to the Court, at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds of further inquiry into his guilt, the accused shall be released on bail.
7. While deciding a bail matter, ordinarily, the detailed merits of the case are not gone into as held by their Lordships of the Supreme Court of Pakistan in PLD 1966 SC 340. It may be added that the rule laid down seems to be quite sound. However, a cursory view of the merits cannot be avoided in disposing a bail matter, to reach the conclusion justified in law. It may be observed that the mere allegation that a person has committed an offence punishable with death or transportation for life, is not sufficient to refuse bail unless reasonable grounds appear to exist to disclose their complicity as it has also to be kept in mind that if an accused, in view of the facts given in a case, is finally acquitted, he cannot be compensated for his period of detention in the judicial lock-up during the trial, apart from the fact that the law also allows concession of bail to a person pending further inquiry into his guilt. Reliance in this regard may also be placed on PLD 1983 SC (AJ&K) 8, wherein the following observation was made:-- "It is the basic principle of law that the bail is not to be refused as a punishment merely on the allegations that a person has committed an offence punishable with death or transportation of life unless reasonable grounds appear to exist to disclose their complicity. The wisdom behind it is that if an accused in view of the circumstances of a given case is finally acquitted, how can he be compensated for his detention, in the judicial lock-up during the- trial. Therefore, the law allows concession of bail to such a person, of course, pending further enquiry into his guilt."
The proposition also finds support from the Supreme Court of Pakistan's judgment recorded in the case titled Manzoor v. The State PLD 1972 SC 81, wherein it was held as under:-- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage. Of the case albeit his acquittal in the long run."
8. Dealing with the case in hand, the accused respondents, are attributed to have caused injuries to the deceased and prosecution witnesses by 'Pail' and Sota'. Prima facie, it appears that the medico-legal reports furnished by the prosecution do not support the version of the complainant.
The injuries appearing on the person of Muhammad Hussain deceased as multiple bruises also do not appear to have been caused with the-weapon attributed to the accused-respondents. The injuries on the person of Shahpal Akhtar, complainant and other prosecution witnesses Gul Hussain also do not corroborate the prosecution version as none of the injuries is shown to have been caused with a blunt weapon. Keeping in view the nature of injuries on the person of Muhammad Hussain deceased and other prosecution witnesses, it is yet to be determined whether the accused-respondents shared the common intention to commit the murder of Muhammad Hussain deceased. Therefore, the case requires further probe and is of further inquiry. A similar proposition attracted the attention of the Lahore High Court in the case titled ' Muhammad Nawaz v. The State' (1981 PCr.I,J 1232) wherein it was laid down on page 1233 as under:--- "It transpires from the perusal of the record that the deceased was not hit by the petitioners; only the P.Ws. Namely Khan Zaman, Noor Khan and Muhammad Khan suffered injuries at their hands.
These were, however, declared simple. I am inclined to agree with the petitioners' learned counsel that the question of vicarious liability should not be deeply examined at the bail stage. Whether or not the petitioners shared the common intention to commit murder of Mst. Alam Khatoon deceased and launched a murderous assault on P.Ws. Is a matter which needs further inquiry. The case apparently falls within the purview of subsection (2) of section 497, Cr.P.C."
It may also be mentioned that the Trial Court after due appreciation of evidence proposed by the prosecution, proceeded to allow concession of bail to the accused-respondents, in exercise of its discretion vested in it which does not warrant any interference by this Court as the order of the trial Court is based on sound principles established by the superior Courts and the law dealing with the bail matters.
9. In view of the above position, the revision petition is found to have no substance in it which is hereby dismissed. The authority, 1981 SCMR 849, referred to by the learned counsel for the complainant, with its distinct facts, is not applicable to the facts of the case in hand. However, the other case, 1979 SCMR 92, referred to by the learned counsel for the complainant, does not lay down the law different to the one enunciated in the cases relied upon, as in the said report, it is held that the Courts, on the basis of material placed before them, are justified even at bail stage, to go into the question whether the case of vicarious liability is made out.